Wednesday, February 25, 2015

In November, I blogged about the impact on mineral producers in Osage County, Oklahoma from a new mandate issued by the Bureau of Indian Affairs, requiring an environmental assessment as a precondition to any future drilling activity. I made mention of a federal class action lawsuit that precipitated the mandate. Since then, the lawsuit has not advanced an inch, with the judge still pondering numerous Motions to Dismiss, filed by the mineral producers.

There is an article in today's Tulsa Worlddescribing the overall situation and the impact on the oil economy in Osage County, which is well on its way to being devastating. But Gentner Drummond, the Plaintiffs' attorney, has a different term for it: "a godsend." According to Mr. Drummond, this is because “exploration and production costs are saved during this period of reduced oil prices.”The implication is that the Osage Nation and the oil producers lack sufficient knowledge and wisdom to adroitly respond to movements in the price of oil, so God must send a class action plaintiffs' attorney to save the day.

Wednesday, December 17, 2014

“You know, a person’s mailbox is federal property, and it is against the law for anyone other than a postal carrier to put anything in it.” Have you ever heard that and wondered whether it is true, or just an urban myth? The first time I really wanted to know the answer was in high school – the pre-Google era.

As a classroom exercise in my high school speech class, each student was required to draft a piece of legislation and defend it during a mock congressional session. Everyone seemed to relish the drafting part of the assignment, dreaming up new laws for their imaginary government to impose upon unruly worker bees. Some pieces of legislation consisted of sections and sub-sections requiring multiple pages of scribbled notebook paper.

I took a different approach. My sixteen years of life experience had already led me to the conclusion that we had too many laws, so rather than contriving a new one, I proposed that an existing law be repealed. This required considerably less drafting time, since it could be effected with a single sentence: “39 CFR 310, entitled Enforcement of the Private Express Statutes, is hereby repealed.”

Okay, maybe I didn’t know the specific Code of Federal Regulation citation, at the time, but I knew that such a regulation existed. Here is the relevant portion, as it still reads today:

§ 310.2 Unlawful carriage of letters.

(a) It is generally unlawful under the Private Express Statutes for any person other than the Postal Service in any manner to send or carry a letter on a post route or in any manner to cause or assist such activity. Violation may result in injunction, fine or imprisonment or both and payment of postage lost as a result of the illegal activity.

This regulation protects the U.S. Postal Service’s monopoly over the delivery of first class letters. UPS and Federal Express are permitted to compete with the USPS in the delivery of packages and express mail, but they are prohibited by federal law from delivering Christmas cards and utility bills.

Notice that this prohibition is not limited to commercial carriers. It applies to “any person” who “in any manner” sends or carries a letter on “a post route.” Of course, everywhere in the United States that there is a domicile is a “post route,” as the USPS itself is quick to boast. So read literally, this regulation prohibits you from hand-delivering to your neighbor an invitation to a block party. Committing this legal activity could result in your fine or imprisonment, as well as your being required to pay the forty-nine cents that rightfully belongs to the USPS.

The USPS has never attempted such an absurd enforcement of the law, but local post officials have gone after businesses that have used private delivery services to distribute their ads.
When I stood to advocate for my proposed legislation in speech class, the primary argument leveled against me was that private carriers would be unable to deliver mail to customers’ existing mailboxes because . . . well, everyone knows that those mailboxes are federal property, and it would be against the law for private carriers to touch them.

I responded by saying that if that is indeed a law, the private carriers and their customers will be capable of working out a solution. As is so common in life, it wasn’t until much later that I thought of a more cogent reply: “If that is indeed a law, then we can repeal it, as well. Repealing two stupid laws is as easy as repealing one stupid law. Your suggested amendment to my proposed bill is accepted.”

This week, I once again heard someone whine that a federal crime had been committed when someone (a client of mine) dared to place a letter in his mailbox. Now living in the Google era, it was easy enough for me to search out the law and confirm that, yes, such a stupid law exists. It is found under 18 U.S.C. § 1725:

Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title.

Furthermore, here’s what Section 508.3.1.3 of the Postal Service’s Domestic Mail Manual says about delivering letters or other material yourself:

No part of a mail receptacle may be used to deliver any matter not bearing postage, including items or matter placed upon, supported by, attached to, hung from, or inserted into a mail receptacle. Any mailable matter not bearing postage and found as described above is subject to the same postage as would be paid if it were carried by mail.

The maximum fine for each offense is $5,000 for individuals and $10,000 for organizations.

Some will argue that the restriction is a security measure, and that it serves to protect you and me from satellite dish salesmen and al-Qaeda, but when read in conjunction with the Private Express Statute quoted above, the true purpose of the restriction is clear – guarding the monopoly. According to the Government Accountability Office, the restriction serves to “protect postal revenue by preventing delivery of unstamped matter to mailboxes.”

The U. S. Supreme Court, in a 1981 decision, rejected a First Amendment challenge to the restriction. The Court reasoned that, “the postal customer, although he pays for the physical components of the ‘authorized depository,’ agrees to abide by the Postal Service’s regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.” Here the Court is saying that once you stick a mailbox in your front yard, you have implicitly designated it as federal territory, at which point the federal government is empowered to proscribe the use of that territory. Of course, no federal statute actually states this, but Justice Rhenquist, otherwise known for advocating judicial restraint, manages to find this implication within the law.

Admittedly, I do not want anyone and everyone to feel free to stuff my mailbox with circulars, tracts and manifestos. (My mailbox is already amply stuffed by the postman with the same.) I can also think of practical advantages in limiting access to mailboxes, some of which are identified in the Supreme Court decision. But guarding the Postal Service against competition is the real purpose.

Wednesday, November 12, 2014

Sometimes federal agencies seem to parody themselves, conforming neatly with the image contained in the wild imaginations of conservative critics as out-of-touch bureaucracies issuing senseless mandates spoken in liberal shibboleths. Such is the case with the new Environmental Assessment Template issued by the Osage Agency, which is within the Bureau of Indian Affairs ("BIA").

To understand it, you will need some background. In 1883, the Osage Indians purchased from the Cherokee Nation the land that would become Osage County in the State of Oklahoma. When you cross over into Osage County, you are also crossing over into the Osage Reservation. In 1906, Congress passed the Osage Allotment Act, 34 Stat. 539, which divided the land in the Osage Reservation among the members of the Osage Tribe. The subsurface mineral estate would be owned by the Tribe, but development of the mineral estate would be overseen by the United States, and the resulting revenue would be managed and distributed by the United States as trustee for the Tribe. Oil and gas leases are entered into between the Tribe and independent producers, but must be "approved" by the Secretary of the Interior through the Superintendent of the Osage Agency.

This arrangement imposes conflicting duties on the part of the BIA. It owes a fiduciary duty to the Osage Tribe, a sovereign nation, to preserve the value of the mineral estate and maximize revenue, but it also has a duty to comply with all statutory law and executive orders governing the operations of federal agencies. Of course, few if any of these laws serve to further the fiduciary duty owed to the Osage Tribe.

An example is the National Environmental Protection Act (“NEPA”), enacted on January 1, 1970. It directs all federal agencies to assess the environmental impact of proposed “major federal actions” that significantly affect the quality of the environment. Arguably, BIA approval of oil and gas leases constitutes “major federal action” that must comply with NEPA mandates. This means that at a minimum, the BIA must complete an Environmental Assessment ("EA") prior to lease approval, establishing that the approval is not anticipated to have a significant impact on the environment.

In May 1979, the Area Director for the BIA approved the Environmental Assessment for the Oil and Gas Leasing Program of the Osage Indian Tribe, Osage County, Oklahoma. Since 1979, the BIA has approved thousands of leases and well permits, premised upon that single EA being sufficient to comply with NEPA.

A surface owner in Osage County has now challenged that practice in a lawsuit filed in the United States District Court for the Northern District of Oklahoma, the argument being that drilling practices and environmental knowledge have changed since 1979 and therefore the 1979 EA has become stale. Furthermore, it is argued that regulations specific to the approval of Osage leases, 25 CFR § 226.2(c) , provide that “[e]ach oil and/or gas lease and activities and installations associated therewith subject to these regulations shall be assessed and evaluated for its environmental impact prior to its approval by the Superintendent.” This suggests that an assessment of some sort must be performed prior to each lease approval.

In panicked overreaction to the filing of the lawsuit, the Osage Agency issued a notice to the oil and gas producers that henceforth, they would need to perform an EA as a prerequisite to applying for a lease or drilling permit. (NEPA places the obligation of performing an EA on the subject federal agency, but the agency will often delegate that obligation to state agencies or private actors.)

Of course, this notice appeared to give legitimacy to the charge made in the lawsuit that there has been a failure to comply with NEPA mandates. This emboldened the plaintiff's attorney, who has now filed a class action suit which seeks to certify a plaintiffs' class comprised of all surface owners in Osage County where oil and gas operations have occurred, and a defendants' class comprised of all unnamed lessees who have operated in Osage County. This lawsuit is a pure money-grab, made evident by the requested remedies, which include the disgorgement of all profits made by the defendants from oil and gas operations in Osage County.

Next, the Osage Agency issued an Environmental Assessment Template to instruct the producers on what each EA should look like when applying for a lease approval, drilling permit, or perhaps any permit whatsoever. Producers estimate it will cost between $6,000 and $10,000 to complete each EA. More troubling are the "best management practices" ("BMP" throughout the template) for lease operations set forth in the 59-page template. They appear to have been drafted by someone who is more attuned to special interests voiced in D.C. than to the practicalities of energy production:

Reduce the amount of fugitive dust and vehicle emissions by controlling road speeds and carpooling

Use "green" completions to recapture product that otherwise would have been vented or flared

Use natural gas-powered engines

If a "noxious weed community is found," the "services of a qualified weed control contractor would be utilized.

The applicant must obtain information to determine the federally protected species that could potentially occur within the vicinity of the project. (This sometimes requires hiring a biologist to count endangered beetles.)

"The presence of qualified cultural resource monitors during construction activities is encouraged."

"Environmental justice communities are present within Osage County . . . [P]otential impacts are reduced through surveys of proposed well locations, and access road and gathering pipeline routes; mitigation measures required by the BIA; and thorough reviews and determinations by the BIA that there would be no effect to historic properties."

Planning transportation to reduce vehicle density.

Posting speed limits on roads.

Painting facilities a color that would blend with the environment.

Keep a watering truck on site and water the access roads as necessary.

All utility lines, including gathering pipelines, and electric and fiber optic lines, essential to oil well operations, would be installed underground.

The template also contains a 2-page section under the caption, "Greenhouse Gas Emissions and Climate Change." This section includes a chart of "temperature anomalies in the contiguous United States, 1979-2009" from NOAA, and includes the following statement: "IPCC experts concluded that most of the observed increase in globally averaged temperature since the mid-twentieth century is very likely due to the observed increase in anthropogenic GHG concentrations." But the section concludes with this: "Oil and gas producers in the United States are not considered large GHG emitters by the EPA, and are not the subject of any current federal proposals that would regulate GHG emissions." In other words, "climate change" speculation has no relevance to an EA prepared in support of a lease application. It is in the template only because it is the confession that must precede absolution in the form of a permit.

The template, combined with the pending class action lawsuit, has resulted in a fall-off of oil production in Osage County. Since the release of the template, there have been no new wells permitted. Rigs are going idle and service companies are laying off workers. The Osage Tribe is facing a substantial fall in oil revenue.

Not surprisingly, there are some angry producers in Osage County who have some tough questions for the new Osage Agency superintendent. The toughest question might by the simplest: "Why has the BIA informed producers that they must start performing environmental assessments to comply with NEPA, if the BIA will be arguing in court that the 1979 assessment is sufficient?"

This issue pits two Democrat constituencies against one another -- environmentalists and Native Americans. We shall see which group has the most political clout.

Sunday, August 31, 2014

According to Forbes, the U.S. has hiked the fee to renounce U.S. citizenship 422%, so voting with your feet is becoming more difficult. This is how the government responds to a record number of citizens leaving for greener pastures -- all stick and no carrot.

According to the article, the State Department says that hiking the exit tax is necessitated by the increase in demand on their services and all the extra workload they have to process people who are on their way out. Notice the statist logic: bureaucrats erect hurdles to escaping the system and then demand more money from those forced to clear the hurdles on the grounds that the hurdles are so expensive to maintain.

Monday, June 23, 2014

A North Carolina court discovered such a thing in Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014). Mrs. Rothrock had sued her husband's paramour, Miss Cooke, for Alienation of Affection and Criminal Conversation. Underlying these alliterative "heart balm" torts is the societal sentiment that adultery is wrong and that the victims are entitled to seek redress that is less pointed than bent golf clubs in the front yard, or a smoking .38.

But Judge John O. Craig, III was disdainful of these long-standing common law torts, and dismissed the wife's suit. His rational for doing so essentially formulates a First Amendment right to break the Seventh Commandment:

AA inherently imposes a chilling effect upon free speech, free association, and expressive conduct within a constitutionally-protected area, or between people with a close familial or amicable relationships. As for CC, its overly broad reach into constitutionally-protected areas infringes upon the First Amendment's protection of consensual conduct occurring within the private confines of one's home, as well as an individual's right to freely associate with another.

This particular "association" would be horizontal, apparently.

For Judge Craig, words of seduction directed to another man's wife is protected speech, and so is the adulterous sex act itself, since it is expressive conduct -- it's how we tell one another to have a good day, in the 21st century.

Judge Craig continues his analysis to find "no compelling state interest in protecting the marital relationship" that can justify suppressing this sort of "free speech." Furthermore:

No substantial, important, or even legitimate state interest exists for punishing affection or intimacy expressed through consensual sexual conduct that takes place in private.

Judge Craig doesn't explain how he determined that protecting the marital relationship is not a legitimate state interest, or whether the people or their representatives get a say in the matter. It should not be surprising to read such statements in a judicial opinion after the U.S. Supreme Court's ruling in Windsor, although Judge Craig does not cite that ruling, or any other dealing with same-sex marriage, which is indeed a surprise. He does, however, rely in part upon Lawrence, which invalidated Texas's anti-sodomy law.

In the end, Judge Craig's analysis of North Carolina's "heart balm" statutes diminishes the societal value of marriage. The state is allowed very little say in what "marriage" is, and after the license issues, the state is to butt out until it's time to divide up the loot and the progeny. If there are any negative consequences from the dissolution of a marriage, the state must simply look the other way. The state has no legitimate interest in trying to prevent them.

Judge Craig sums up as follows:

Therefor, AA and CC are unconstitutional violations of the First Amendment's guarantee of free speech, the First Amendment's guaranty of free association, and the Fourteenth Amendment's substantive due process protection of private conduct involving consenting adults, because each claim for relief fails in the face of a strict scrutiny analysis.

There might be sound policy reasons for a legislature to do away with "heart balm" torts -- most states have already done so. But for a judge to make what would otherwise be a legislative decision by framing it as a First Amendment issue, is to abase the First Amendment. If we are to consider any activity that takes place between "consenting adults" in private to be protected speech, then many other laws and civil causes of action must be called into question: tortious interference with contract, prostitution, any and all solicitation crimes, drug laws, antitrust laws, etc.

Again, there might be sound reasons for doing away with all such laws and transitioning towards a purely libertarian landscape, but the First Amendment is not the vehicle for doing so.

Friday, June 13, 2014

"Ignorance of the law is no excuse." That is the retort frequently given by the arresting officer, prosecutor, or judge to the cry of a citizen surprised by an obscure law. In a decision as recent as 2008, the Oklahoma Supreme Court offered this helpful reminder as it brought down the ax: "It is axiomatic, that in most instances, ignorance of the law is no excuse, and every person is presumed to know the law."

That is quite a presumption, but is one that must be made if we are to have a functioning civil society operating according to set laws. When I told my mother I did not understand the meaning of her bare preposition, "Take the trash out," I was not spared punishment. Similarly, there can be no mercy for the bank robber who says he doesn't understand proper withdrawal procedures.

If each of us is charged with the duty to know, understand, and follow all laws existing now and in the future, then we all have reason to keep government small. The alternative is more cages for the ignorant.